The Role of Expert Evidence in Guardianship and Administration Proceedings

Guardianship and administration applications in Western Australia often involve contested questions of mental capacity. In such cases, the State Administrative Tribunal (“the Tribunal”) must weigh lay evidence alongside professional assessments by medical and allied health practitioners. The recent decision in MM [2025] WASAT 103 provides a useful illustration of the principles the Tribunal applies when considering expert evidence.

Background: MM [2025] WASAT 103

The case concerned MM, a woman in her early 80s. Her daughter, YY, applied to be appointed administrator of MM’s financial affairs, alleging that MM lacked capacity and was the victim of coercion and elder abuse by her son, SS. Central to the dispute was whether MM had the ability to manage her financial affairs, particularly in light of a complex property transaction with SS.

YY arranged for MM to be assessed by a neuropsychologist, Dr J, who concluded that MM had a mild cognitive impairment and was unable to independently advocate for her interests in complex financial decisions. In contrast, MM’s general practitioner and a geriatrician (Dr F) found that MM had capacity to manage her affairs. Evidence was also provided by the Public Advocate and Public Trustee.

The Tribunal ultimately held that the presumption of capacity under the Guardianship and Administration Act 1990 (WA) had not been rebutted, and dismissed the application2025WASAT103.

The Presumption of Capacity

Section 4 of the Guardianship and Administration Act 1990 (WA) enshrines the presumption that every person is capable of managing their own affairs until the contrary is proved to the satisfaction of the Tribunal. As observed in Briginshaw v Briginshaw (1938) 60 CLR 336, clear and cogent evidence is required to displace such a presumption where serious consequences follow2025WASAT103.

In MM, the Tribunal emphasised that it will only be persuaded to override the presumption where the evidence is strong and consistent. Lay testimony, observed behaviour, and professional assessments all form part of this evaluative exercise.

The Tribunal’s Approach to Expert Evidence

The Tribunal is not bound by the rules of evidence (see State Administrative Tribunal Act 2004 (WA), ss 32(2), 32(4)) and may inform itself in any manner it thinks fit. This allows the Tribunal to consider expert reports while also taking into account the circumstances in which they were obtained.

In MM, the Tribunal noted several concerns with Dr J’s report:

• MM did not understand the purpose of the assessment and was not given the opportunity to review key documents provided to Dr J by YY.

• Dr J relied heavily on information supplied by YY, without equivalent input from SS.

• The conclusions were inconsistent with the direct observations of the Tribunal, as well as the reports of MM’s GP, geriatrician, and the Public Trustee.

As a result, the Tribunal gave less weight to Dr J’s opinion, preferring the evidence of Dr F and others who concluded that MM retained capacity.

The Weight to Be Given to Expert Evidence

The decision underscores that while expert reports are often central to guardianship proceedings, the Tribunal will assess their independence, methodology, and consistency with other evidence before determining the weight to be attached to them.

As noted in XYZ (Guardianship) [2007] VCAT 1196, the Tribunal may consider evidence from a wide variety of sources, both lay and professional, when assessing capacity. In GC and PC [2014] WASAT 10 and LP [2020] WASAT 25, the Tribunal stressed that expert assessments are important but not determinative; they must be viewed in light of the whole factual matrix.

In MM, the Tribunal concluded that the difficulties MM experienced in advocating for herself were not caused by cognitive impairment but rather by family conflict and complex personal relationships.

The Right to Make Unwise Decisions

A further theme in MM was the Tribunal’s recognition that capacity does not equate to making only “good” decisions. As stated in T [2018] WASAT 128, people have the right to make bad or unwise decisions, provided they have capacity. In this case, even if some considered MM’s financial choices imprudent, the Tribunal found she was entitled to make them.

Lessons from MM [2025] WASAT 103

This case illustrates several important principles for guardianship and administration proceedings:

1. Expert evidence must be independent and fairly obtained. Reports arranged without transparency, or based on incomplete or biased information, may be given reduced weight.

2. The presumption of capacity is robust. It requires clear and persuasive evidence to be set aside.

3. Lay and professional evidence are both important. The Tribunal considers the whole of the evidence, including its own observations of the proposed represented person.

4. Capacity is not judged by the wisdom of decisions. Adults with capacity retain the right to make decisions others may consider unwise.

Conclusion

MM [2025] WASAT 103 provides timely guidance on how the Tribunal evaluates expert evidence in guardianship and administration cases. While expert reports remain a critical tool, their weight depends on independence, context, and consistency with other evidence. Above all, the case reaffirms the central principle that capacity is presumed, and only compelling evidence will justify interference with a person’s autonomy.

Consenting to Extensions of Time: A Legal Practitioner's Duty to the Court

The Context: A Lesson from HOOPER v COCKLES

In HOOPER v COCKLES PTY LTD [2025] WASCA 143, the Court of Appeal was required to determine an application that, in the words of Vaughan JA, "should never have been necessary." The appellants sought a modest one business day extension to file their appellant's case, from 12 September to 15 September 2025. The reason was straightforward: counsel's unrelated mediation had overrun its scheduled time, preventing finalisation of the appellant's case on the due date. Despite the minimal nature of the extension sought and the absence of any specific prejudice, the solicitor for the second and third respondents refused consent, necessitating a formal application to the court.

The Power to Extend Time

The court's power to extend time in the Court of Appeal derives from Order 3 rule 5 of the Rules of the Supreme Court 1971 (WA), which applies to the Court of Appeal through the Supreme Court (Court of Appeal) Rules 2005 (WA). As established in Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35 at [46], this rule confers a broad remedial power on the court to relieve against injustice (Billabong Gold at [47], [65], [73]).

Order 3 rule 5(1) empowers the court to extend the period within which a party is required or authorised to do any act in proceedings. This power may be exercised by a single judge of appeal or a Court of Appeal registrar. The discretion is to be exercised in the interests of justice, weighing all relevant circumstances including the reason for the delay, any prejudice to other parties, and the impact on the conduct of the litigation.

The Professional Duty to Facilitate Justice

The decision in HOOPER v COCKLES underscores a fundamental principle that extends beyond mere procedural courtesy. Legal practitioners have a positive duty to assist the court in attaining the objects set out in Order 1 rule 4B of the Rules of the Supreme Court 1971 (WA). These objects include:

• Disposing efficiently of the business of the court (r 4B(1)(b))

• Maximising the efficient use of judicial and administrative resources (r 4B(1)(c))

• Ensuring that the applicable procedure and costs are proportionate (r 4B(1)(e) and (f))

This duty is not merely aspirational. As Vaughan JA emphasised, a solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty (Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 r 3.1). Barristers are subject to similar overriding duties (Legal Profession Uniform Conduct (Barristers) Rules 2015 r 4(a), (d), r 23).

When Consent Should Be Given

The principles emerging from HOOPER v COCKLES establish clear guidance for when legal practitioners should consent to extension requests:

Consent should ordinarily be given where:

• The extension sought is reasonable in duration

• The extension will not adversely affect any future hearing date

• The extension will not otherwise disrupt the conduct of the litigation

• No specific prejudice will be suffered by the opposing party

The absence of consent should be reserved for circumstances where:

• Specific, identifiable prejudice would result from the extension

• The extension would affect scheduled hearing dates

• There has been a pattern of repeated delays without adequate explanation

• The extension would materially disrupt case management directions

The Consequences of Unreasonable Refusal

The court in HOOPER v COCKLES made clear that unreasonable refusal to consent to minor extensions wastes judicial resources and unnecessarily increases costs. While the court ultimately made no order as to costs in that case (as none were sought), Vaughan JA explicitly warned that "a different position may prevail in the future if the present circumstances are replicated."

The judgment contemplated the possibility of requiring solicitors to show cause under Order 66 rule 5 of the Rules of the Supreme Court 1971 (WA) where consent is unreasonably withheld. This signals the court's willingness to scrutinise the conduct of legal practitioners who obstruct the efficient administration of justice through tactical or unreasonable refusals.

Practical Considerations

Legal practitioners should approach extension requests with the following considerations:

1. Act promptly: When an extension becomes necessary, seek consent at the earliest opportunity

2. Provide reasons: Explain the circumstances necessitating the extension clearly and honestly

3. Be proportionate: Ensure the extension sought is no longer than necessary

4. Document communications: Keep records of consent requests and responses

5. Consider reciprocity: Professional courtesy in granting reasonable extensions fosters efficient case management

The Broader Principle

The decision in HOOPER v COCKLES reflects a broader principle about the role of legal practitioners in the justice system. As Vaughan JA observed, agreeing to reasonable extensions not only fulfils a practitioner's duty to the court but also benefits their own client by avoiding unnecessary costs associated with formal applications.

The message is clear: legal practitioners must rise above tactical gamesmanship and recognise their role as officers of the court. The efficient administration of justice requires cooperation where it does not prejudice legitimate interests. As stated in HOOPER v COCKLES at [16], "a legal practitioner will not be in breach of any duty to his or her client in agreeing a reasonable extension of time which neither adversely affects a future hearing date nor otherwise disrupts the conduct of the litigation."

Conclusion

The principles established in HOOPER v COCKLES PTY LTD [2025] WASCA 143 serve as a reminder that the practice of law is not merely an adversarial contest but a professional endeavour aimed at the just and efficient resolution of disputes. Legal practitioners who understand and embrace this principle will find themselves better serving both their clients' interests and their paramount duty to the court.

Understanding the Contextual Truth Defence in Defamation Law

The Al Muderis Case: A Recent Application

The Federal Court's decision in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909 provides valuable insights into the operation of the contextual truth defence in defamation proceedings. Dr Munjed Al Muderis, an orthopaedic surgeon specialising in osseointegration procedures, brought defamation proceedings against Nine Network and associated media outlets concerning a Four Corners broadcast titled "The Agony" and related online articles published in 2023. The publications examined the experiences of certain patients who had undergone osseointegration surgery with Dr Al Muderis, with the surgeon alleging the materials conveyed 75 defamatory imputations about his surgical practice and patient care. The Court ultimately found that the respondents had established the contextual truth defence under section 26 of the Defamation Act 2005 (NSW), dismissing the application.

The Legislative Framework

Section 26 of the Defamation Act 2005 (NSW) provides a complete defence to defamation where a defendant can establish two essential elements. First, the published matter must carry one or more imputations that are substantially true (known as "contextual imputations"). Second, any defamatory imputations complained of by the plaintiff that are not contextual imputations must not further harm the plaintiff's reputation because of the substantial truth of the contextual imputations.

The defence underwent significant amendment on 1 July 2021, with the introduction of section 26(2) proving particularly important. As the Court noted in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909, this provision means it is no longer necessary that a defendant's contextual imputations be different in substance from a plaintiff's pleaded imputations. A defendant may now rely on any imputations carried by a publication - whether the same as, permissible variants of, carrying a common sting with, or entirely different in substance from the imputations of which the plaintiff complains - as contextual imputations.

The Defence Must Defeat All Defamatory Stings

A fundamental principle of the contextual truth defence is that it must defeat the entire defamatory matter of which the plaintiff complains. As established in Besser v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [78], the defence "must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, that is to say all of the plaintiff's stings." This means that the substantial truth of the contextual imputations must be sufficiently serious and comprehensive to render any remaining unproven imputations incapable of causing further reputational harm.

Assessing Further Harm: Facts Not Just Imputations

One of the most significant aspects of the contextual truth defence concerns how courts assess whether residual imputations cause "further harm" to reputation. The Full Court's decision in Seven Network (Operations) Limited v Greiss [2024] FCAFC 162 recently clarified this issue, confirming the approach established in John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541.

In Blake, Spigelman CJ observed that section 16(2)(c) of the predecessor Defamation Act 1974 (NSW) does not focus attention on a contextual imputation as such, but on the proposition that such an imputation is a "matter of substantial truth." The Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself. This approach was confirmed to apply equally to the current section 26 in Greiss.

As Applegarth J noted in Nationwide News Pty Ltd v Weatherup [2017] QCA 70; [2018] 1 Qd R 19 at [46], "The requirement to prove no further harm to the plaintiff's reputation focuses on the facts, matters and circumstances which establish the substantial truth of the contextual imputations. This reflects the language of the section."

Substantial Truth and the Sting of the Libel

When establishing contextual imputations as substantially true, defendants must prove every material part of an imputation is true, with the defence concerned with meeting the sting of the defamation, as confirmed in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 at [138]. A "material part" is any detail which alters or aggravates the character of the imputations, as established in Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4 at 22.

The classic statement of principle comes from Lord Shaw of Dunfermline in Sutherland v Stopes [1925] AC 47 at 78-79, who explained that the plea of justification "must not be considered in a meticulous sense" and that "all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out."

The Character as Criminal Example

The contextual truth defence's operation can be illustrated through cases involving imputations about criminal character. In State of New South Wales v Wraydeh [2019] NSWCA 192, discussed in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909, the State pleaded contextual truth relying on an imputation that "the plaintiff is a criminal," seeking to prove this through evidence of prior criminal convictions unrelated to the events giving rise to the proceedings.

The Court of Appeal's analysis highlighted that whether a person should be characterised in the present tense as "a criminal" is not answered determinatively by establishing past criminal offences. As McCallum JA observed, this "ignores the possibility of change and rehabilitation" and "not every prior conviction would be regarded as necessarily warranting that label." Simpson AJA similarly questioned whether "a person convicted of shoplifting at age 18 [should] forever be branded 'a criminal'."

Strategic Considerations for Defendants

The contextual truth defence offers defendants significant strategic advantages, particularly following the 2021 amendments. Defendants can now rely on the plaintiff's own pleaded imputations as contextual imputations if they can prove them substantially true. This allows defendants to effectively use the plaintiff's case against them, proving some of the plaintiff's imputations to neutralise the sting of those they cannot prove.

The defence is particularly powerful where publications convey imputations involving general charges about a person's character or conduct. Where such general charges are made, defendants are entitled to give particulars demonstrating their truth by reference to a wide variety of matters not confined to facts in the article, as established in Maisel v Financial Times Limited (1915) 112 LT 953.

Practical Application

The application of the contextual truth defence in Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909 provides instructive guidance on how the defence operates in practice. The respondents' strategic approach, as articulated at [224], was to rely on all imputations to which they had pleaded a justification defence as contextual imputations, including those the Court ultimately found were not conveyed by the publications.

The Imputations at Issue

The Court found at [8] that while certain imputations were not conveyed (including the "Disputed Imputations" at [10.1]-[10.6], [13.2], [13.6], [13.20], [16.4], [16.8], [16.13], [16.15], [16.20], [16.23], [16.27], [16.29] and [16.30]), the remaining imputations that were conveyed provided sufficient basis for the contextual truth defence. Significantly, at [219], the Court accepted that many of the applicant's pleaded imputations involved "general charges" capable of being justified by reference to facts not stated in the publications.

These general charges included serious professional allegations such as:

• Imputation [10.1]: "negligently operated on his patients"

• Imputation [10.2]: "deliberately misled his patients about his surgical abilities"

• Imputation [13.4]: "prioritises money over his patients' care"

• Imputation [13.14]: "runs his surgical practice as a numbers game"

• Imputation [13.18]: "exploited vulnerable patients"

• Imputation [16.1]: "is a callous surgeon who routinely left patients to rot"

• Imputation [16.2]: "routinely negligently failed to provide after surgery care"

• Imputation [16.25]: "negligent in his selection of patients"

• Imputation [16.26]: "habitually failed to explain risks and complications"

The Respondents' Strategic Approach

As the Court noted at [224], the respondents articulated their position clearly: they contended that ordinary reasonable readers and viewers would understand references to "surgery" and like terms as extending to all aspects of Dr Al Muderis's surgical practice, not merely performance "in the operating theatre." This broader interpretation encompassed "pre-operative considerations and consultations and post-operative care, including patient selection, disclosure of risks, misleading patients, making false promises, abandoning patients and negligent post-surgery care."

The respondents submitted at [224] that so long as these broader imputations were conveyed, they were "permitted to rely on them as contextual imputations for the purposes of s 26." This strategic framing allowed them to marshal evidence about the full spectrum of Dr Al Muderis's professional conduct, not just his technical surgical skills.

Establishing Substantial Truth Through Multiple Incidents

In applying the principle from Maisel v Financial Times Limited (1915) 112 LT 953, referenced at [219], the Court accepted that the respondents could justify general charges by reference to "a wide variety of matters which are not confined to the facts in the article." This meant the respondents could present evidence of multiple patient experiences beyond those specifically mentioned in the Four Corners broadcast and articles.

The Court's approach at [226] followed the established principle from John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541 at [61] and Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 at [2602], weighing the particulars and evidence relied upon in support of the substantial truth of the contextual imputations.

The "Swamping" Effect

The respondents' submission at [224] exemplified the strategic power of the contextual truth defence: they argued that the "Disputed Imputations in this broader sense, together with the other imputations which are the subject of the contextual truth defence... are substantially true and that, taken together, the substantial truth of the contextual imputations swamps the defamatory effect of any residual imputations which the Court may find have not been proven to be true."

The Court ultimately accepted this argument, finding at [8(3)] that "the respondents have established the defence of contextual truth under s 26 of the Defamation Act in relation to the Publications in which imputations are conveyed." This finding meant that even though not all 75 pleaded imputations were proven or even conveyed, the substantial truth of the contextual imputations that were established was sufficient to defeat the entire claim.

Key Takeaway for Practitioners

The case demonstrates that defendants need not prove every imputation complained of by a plaintiff. Where defendants can establish the substantial truth of sufficiently serious contextual imputations about professional misconduct - particularly those involving systematic patterns of behaviour rather than isolated incidents - these may neutralise the sting of any unproven imputations. The defence is particularly powerful where, as at [219], the plaintiff has pleaded imputations as general charges, opening the door for defendants to lead wide-ranging evidence of conduct beyond that specifically referenced in the publication.

Conclusion

The contextual truth defence represents a powerful tool in defamation proceedings, allowing defendants to defeat claims by establishing that the substantial truth of certain imputations renders any remaining defamatory material incapable of causing further reputational harm. The recent authorities, particularly Al Muderis v Nine Network Australia Pty Ltd [2025] FCA 909 and Seven Network (Operations) Limited v Greiss [2024] FCAFC 162, confirm that courts will focus on the underlying facts establishing the truth of contextual imputations rather than merely comparing imputations in the abstract. For practitioners, understanding this defence's operation is essential for both prosecuting and defending defamation claims in Western Australia and throughout the uniform defamation law jurisdictions.

Understanding Excluded Corporations in Australian Defamation Law

Introduction: The Deep Cycle Systems Case

A Queensland District Court decision has provided valuable guidance on what constitutes an "excluded corporation" under Australian defamation law. In Deep Cycle Systems Pty Ltd v Fischer [2025] QDC 25, a lithium battery manufacturer sued for defamation over publications made between August and December 2023. The defendant successfully applied for a separate determination of whether the plaintiff was an excluded corporation under section 9 of the Defamation Act 2005 (Qld). The court ultimately found that the plaintiff failed to establish it was an excluded corporation, meaning it could not maintain its defamation action.

The Statutory Framework

Under section 9(1) of the Defamation Act 2005, a corporation has no cause of action for defamation in relation to the publication of defamatory matter unless it was an "excluded corporation" at the time of publication. This provision exists across all Australian jurisdictions as part of the uniform defamation legislation.

To qualify as an excluded corporation under section 9(2), a corporation must satisfy two requirements:

1. It employs fewer than 10 persons; and

2. It is not an associated entity of another corporation.

Both elements must be established on the balance of probabilities at the time of the relevant publications.

The Employee Test: A Broader Definition

The definition of "employee" in section 9(6) extends beyond traditional common law employment concepts. As noted in Aaren Pty Ltd trading as Price Beat Travel v Arya [2020] NSWDC 657, following observations in Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421, the relationship between the corporation and its employees need not be direct.

In Deep Cycle Systems, the court considered various categories of workers:

• Direct employees under contract

• Freelance engineers

• Family members working voluntarily

• Dealers and distributors

• Potential overseas workers

The court found that dealers who could be terminated for failing to meet "minimum dealer requirements" fell within the broad definition of employees. However, mere volunteers, such as family members working without payment, were not considered employees.

The Associated Entity Test

The second limb requires corporations to prove they are not an "associated entity" of another corporation. This term takes its meaning from section 50AAA of the Corporations Act 2001 (Cth).

Under section 50AAA(7), the test is satisfied where:

• A third entity controls both the principal and the associate; and

• The operations, resources or affairs of the principal and the associate are both material to the third entity.

The Materiality and Nexus Requirement

Following Fair Work Ombudsman v Priority Matters Pty Ltd & Anor [2016] FCCA 1474, there must be a nexus between the associated entities in their respective operations, resources or affairs that are jointly material to the third entity. It is not sufficient that each entity is separately material to the controlling entity.

"Material" is understood to mean "of substantial import or much consequence" or "important or having an important effect." The determination of materiality depends on issues of fact and degree.

Key Indicators of Association

In Deep Cycle Systems, the court found the corporations were associated entities based on several factors:

1. Shared financial resources: Use of a single credit card for both companies' expenses with only annual reconciliation

2. Inter-company loans: Significant loans between the entities and to the controlling director

3. Shared physical assets: Vehicles and equipment used by both companies

4. Cross-promotional activities: Use of one company's marketing channels to advertise the other's products

5. Financial interdependency: Movement of money between entities suggesting joint income generation

The court emphasized that while separate business operations and accounting systems are relevant, they do not necessarily prevent a finding of association where other factors demonstrate material interdependency.

Practical Implications

For corporations contemplating defamation proceedings, establishing excluded corporation status requires careful attention to:

1. Accurate employee counting: Include all workers falling within the expanded definition, including contractors, dealers, and others under the corporation's direction or control

2. Documentary evidence: Maintain clear records of employment arrangements and corporate structures

3. Financial separation: Ensure genuine independence between related entities, particularly in financial dealings

4. Credibility: The court will carefully scrutinize evidence, particularly where witnesses have made admittedly false statements about business arrangements

Conclusion

The Deep Cycle Systems decision reinforces that the excluded corporation provisions are interpreted strictly. Corporations must satisfy both limbs of the test with credible evidence. The broad definition of "employee" and the practical approach to determining "associated entity" status mean that many corporations that might consider themselves small or independent may still be unable to sue for defamation.

Legal practitioners should carefully assess their corporate clients' structures and operations before commencing defamation proceedings, as failure to establish excluded corporation status will result in the proceedings being dismissed, potentially with adverse costs consequences.

Offers to Make Amends in Defamation Law: Key Considerations for Publishers

Introduction

The Queensland Supreme Court decision in McVicker v Nine Digital Pty Ltd [2025] QSC 110 provides valuable guidance on the operation of offers to make amends under defamation legislation. In this case, Mr McVicker sued Nine Digital over three articles published on the 9Finance and A Current Affair websites concerning the collapse of online travel agency Bestjet. Nine Digital successfully defended the claim by establishing it had carried out the terms of an accepted offer to make amends, thereby engaging the statutory bar under section 17(1) of the Defamation Act 2005 (Qld). The dispute centered on whether Nine Digital had properly published the agreed correction on its websites, with the Court ultimately finding in the publisher's favor.

The Statutory Framework

Under Division 1 of Part 3 of the Defamation Act 2005, publishers have an opportunity to resolve defamation claims through the offer to make amends procedure. Section 14 provides that a publisher may make an offer to make amends in response to a concerns notice, while section 15 sets out the requirements for such offers.

Critically, section 17(1) provides that if a publisher carries out the terms of an accepted offer to make amends (including payment of any compensation), the aggrieved person cannot assert, continue or enforce an action for defamation in relation to the matter in question. This creates a complete defense to the defamation claim, even if the offer was limited to particular defamatory imputations.

Key Elements of an Effective Offer

An offer to make amends typically includes:

1. Removal of the offending material - The publisher agrees to remove the allegedly defamatory content from its platforms

2. Publication of a correction or apology - A written correction must be published in terms agreed between the parties

3. Payment of legal costs - The publisher must pay the aggrieved person's reasonably incurred legal costs

4. Notification to third parties - If the material was given to others, the publisher must inform them it may be defamatory

Construction of Agreements Formed by Acceptance

When disputes arise about whether a publisher has carried out the terms of an accepted offer, courts apply ordinary principles of contractual construction. As confirmed in McVicker v Nine Digital Pty Ltd [2025] QSC 110, agreements formed by acceptance of offers to make amends are construed objectively by reference to text, context and purpose, following the approach in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37.

The New South Wales Court of Appeal decision in Nationwide News Pty Ltd v Vass (2018) 98 NSWLR 672; [2018] NSWCA 259 established that while ordinary contractual principles apply to construction, the formation of such agreements is governed by the statutory regime rather than general contract law.

Publication Requirements: "Websites" vs "Homepages"

A crucial issue in McVicker v Nine Digital Pty Ltd [2025] QSC 110 was the interpretation of an agreement to publish a correction "on the 9Finance and A Current Affair websites." The plaintiff argued this required publication on the homepages or with equal prominence to the original articles.

The Court rejected this argument, finding:

• The parties had a clear understanding of the distinction between websites and homepages, as evidenced by their correspondence

• The agreed correction was published at unique URLs on both websites, with links appearing on the homepages for at least 24 hours

• This mirrored how the original articles were published

• There was no requirement for "equal prominence" beyond what was expressly agreed

Avoiding the Pitfalls: Lessons from Hafertepen

The Federal Court decision in Hafertepen v Network Ten Pty Ltd [2020] FCA 1456 provides a cautionary tale. In that case, the agreed clarification was published in an obscure location on the "terms of use" page at the bottom of the website. The Court found this did not satisfy the publisher's obligations.

Publishers should ensure corrections are:

• Published in accessible locations on their websites

• Available for the agreed duration

• Not hidden in obscure or difficult-to-find pages

• Accompanied by appropriate links where agreed

The Importance of Clear Drafting

The McVicker case demonstrates the critical importance of precise language when negotiating offers to make amends. Publishers and complainants should:

• Clearly specify where corrections will be published (homepage, website, or both)

• Define the duration of publication

• Agree on the exact wording of corrections

• Consider whether links or tiles will be used and for how long

• Document all agreed terms in writing

Practical Considerations

When making or responding to offers to make amends, parties should:

1. Act promptly - Strict time limits apply under section 14

2. Be specific - Vague terms lead to disputes

3. Consider prominence - While "equal prominence" may not be implied, parties can expressly agree to specific prominence requirements

4. Document compliance - Publishers should maintain evidence of publication, including screenshots and viewership data

5. Communicate clearly - Distinguish between websites, homepages, and other digital platforms

The Objective Framework

As emphasized in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24, courts look to the objective framework of facts within which agreements come into existence. In the digital context, this includes understanding how content is typically published and accessed on websites, the usual duration of homepage prominence, and the technical distinctions between different parts of websites.

Conclusion

The offer to make amends procedure provides a valuable mechanism for resolving defamation disputes without litigation. However, as McVicker v Nine Digital Pty Ltd [2025] QSC 110 demonstrates, the success of this mechanism depends on clear communication, precise drafting, and proper implementation of agreed terms. Publishers who carefully document their compliance with accepted offers can rely on the strong statutory defense provided by section 17(1). Conversely, complainants should ensure their expectations are clearly expressed and agreed in writing before accepting offers. With proper attention to detail, the offer to make amends procedure can achieve its purpose of facilitating early resolution of defamation claims.

Malice in Defamation: When Improper Purpose Defeats Privilege

The Harvey v Henderson Case: A Recent Example

The New South Wales Supreme Court decision in Harvey v Henderson [2025] NSWSC 601 provides valuable insights into the role of malice in defamation proceedings. The case involved a wildlife carer and charity founder who sued two former committee members over emails and social media posts alleging fraud and misuse of charitable funds. The defendants had published various communications suggesting the plaintiff was running the Wild2Free charity as a "private fundraiser" for herself and had engaged in "fraudulent conduct." While some publications were protected by qualified privilege due to the parties' roles as committee members, the case ultimately turned on whether malice could be established to defeat these defences.

Understanding Malice in Defamation Law

Malice in defamation law is not simply ill-will or spite, though these may form part of it. As the court in Harvey v Henderson noted, drawing from established authority, malice consists of one of three things: personal spite, an intention to injure the plaintiff without just cause, or knowledge of the falsity of what is said. The formulation derives from well-established principles, as cited in Australand Holdings Ltd v Transparency and Accountability Council Incorporated [2008] NSWSC 669, which referenced the authoritative text Clerk & Lindsell on Torts.

However, malice is not limited to these three categories. Any improper motive may constitute malice sufficient to defeat a defence of qualified privilege. This was affirmed in Harvey v Henderson, where the court acknowledged that malice could extend beyond the traditional categories to encompass any purpose not covered by the privilege being claimed.

The Relationship Between Malice and Qualified Privilege

Qualified privilege provides a crucial defence in defamation proceedings, protecting communications made in certain circumstances where freedom of expression serves the public interest. As the High Court explained in Cush v Dillon; Boland v Dillon (2011) 243 CLR 298, qualified privilege is based on public policy that recognises freedom of communication may sometimes be more important than protecting individual reputation.

However, this protection is not absolute. The privilege is qualified by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement. As stated in Roberts v Bass (2002) 212 CLR 1, express malice defeats the privilege when the defendant uses the privileged occasion for a reason not referable to the duty or interest pursued.

In Harvey v Henderson, the court emphasised that even where qualified privilege might otherwise apply - such as communications between board members about potential misconduct - the defence fails if the dominant purpose for the publication was improper. The mere existence of a legitimate occasion for communication does not provide carte blanche to defame.

The Burden and Standard of Proof

Crucially, the burden of proving malice rests with the plaintiff. Once a defendant establishes that qualified privilege applies, the plaintiff must prove malice to defeat the defence. This allocation of burden reflects the law's recognition that those communicating on privileged occasions should not be too readily stripped of protection.

The standard of proof remains the civil standard - balance of probabilities. However, as noted in Harvey v Henderson, where allegations of fraud or dishonesty are involved, the court must be conscious of the gravity of such allegations, following the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.

It's important to note that under section 36 of the Defamation Act 2005 (NSW), the court must disregard the defendant's malice or state of mind when awarding damages, except to the extent that it affects the actual harm sustained by the plaintiff. This statutory provision ensures damages remain compensatory rather than punitive, even where malice is established.

What Does and Doesn't Constitute Malice

The Harvey v Henderson decision provides helpful guidance on what will and won't establish malice:

What may constitute malice:

• Knowledge that the published material is false

• Publishing for a purpose unrelated to the privileged occasion

• Personal spite or desire to injure without justification

• Using defamation as leverage for unrelated gains

• Conduct during litigation, including prolonged hostile cross-examination or pursuing a defence bound to fail (as noted in Harbour Radio Pty Ltd v John Tingle [2001] NSWCA 194)

What doesn't necessarily constitute malice:

• Conducting a campaign of publications (unless for an improper purpose)

• Strong belief in the truth of allegations, even if ultimately unproven

• Multiple complaints to authorities, if genuinely held

• Failure to apologise (though this may affect damages)

• Publishing material that turns out to be false, without knowledge of falsity

Importantly, Harvey v Henderson clarified that neither lack of belief in the truth of a statement nor its objective falsity is sufficient alone to establish malice and destroy qualified privilege. This protects those who communicate in good faith on privileged occasions, even when mistaken.

Mixed Purposes and Dominant Motive

A significant aspect of the malice analysis involves situations where a defendant may have multiple reasons for publishing defamatory material. As Harvey v Henderson demonstrates, conduct may have several purposes. The court must identify the "substantial or operative purpose" for the publication. Only when this dominant purpose is improper will malice be established.

In that case, while the defendants may have been motivated by grievances about fund distribution and equipment allocation, the court was not satisfied that any improper purpose was the operating factor in their publications to fellow board members about governance concerns.

The Distinction Between Malice and Aggravated Damages

Harvey v Henderson also illustrates the important distinction between malice for defeating qualified privilege and malice for aggravated damages. While the court found insufficient evidence of malice to defeat qualified privilege for certain publications, it separately considered whether malice existed for the purpose of awarding aggravated damages.

The Statutory Framework: Section 36 of the Defamation Act

A critical provision governing the role of malice in damages is section 36 of the Defamation Act 2005 (NSW), which states:

"In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff."

This provision fundamentally shapes how courts approach malice in the damages context. As Harvey v Henderson demonstrates, the court must ensure there is a rational relationship between the harm sustained and damages awarded, regardless of the defendant's malice or state of mind. Malice can only influence damages to the extent it actually increases the harm suffered by the plaintiff.

Practical Effect of Section 36

The statutory limitation means that:

1. Malice is not punitive: Courts cannot increase damages simply to punish a malicious defendant

2. Focus on actual harm: The relevant inquiry is whether the defendant's malice caused additional harm to the plaintiff

3. Examples of increased harm: Malice might increase harm where:

   • The defendant's known spite makes the publication more hurtful to the plaintiff

   • Malicious intent becomes known to others, compounding reputational damage

   • The manner of publication, driven by malice, increases the spread or impact

When malicious intent becomes known to others: This occurs where the defendant's improper motive becomes apparent to those who read or hear about the defamatory publication. For instance, if readers become aware that the defendant published the material out of spite or to gain leverage in an unrelated dispute, this knowledge may cause them to discuss the allegations more widely or view the plaintiff with additional suspicion. The "grapevine effect" can be amplified when the audience knows the publication was maliciously motivated, as it may lend a perverse credibility to the allegations ("there must be something to it if they're so determined to destroy her"). In Harvey v Henderson, evidence of the defendants' campaign and circulation of court documents could potentially fall into this category, though the court ultimately found insufficient evidence of malice.

When manner of publication increases spread or impact: Malice may drive a defendant to publish in a particularly damaging way - choosing the widest possible audience, the most damaging forum, or timing publication for maximum harm. For example, a defendant acting maliciously might post on multiple social media platforms rather than sending a private email, might choose inflammatory language designed to go viral, or might time publication to coincide with the plaintiff's important business dealings. In Harvey v Henderson, the defendants' use of public Facebook pages rather than private communications to committee members could be seen as an example, though the court noted the posts were removed quickly, limiting their impact.

Aggravated damages remain compensatory in nature, not punitive. As the High Court stated in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, such damages compensate for additional harm caused by the defendant's conduct that is "improper, unjustifiable or lacking in bona fides." The absence of an apology, while not establishing malice to defeat privilege, may be relevant to the plaintiff's hurt feelings and thus ordinary compensatory damages.

Practical Implications

For legal practitioners, Harvey v Henderson reinforces several key principles:

1. Document the legitimate purpose: When advising clients who need to communicate potentially defamatory material on a privileged occasion, ensure they can articulate and document the legitimate purpose for the communication.

2. Stay within bounds: Communications should be limited to what is relevant and necessary for the privileged purpose. In Harvey v Henderson, social media posts attacking a third party in response to criticism were held to fall outside the privilege of reply to attack.

3. Consider the audience: Qualified privilege based on duty or interest requires reciprocity. Publishing to the world at large on social media will rarely attract privilege, as the court noted regarding the ABC South East NSW Facebook page posts.

4. Belief in truth matters: Honest belief in the truth of defamatory statements, while not a complete defence, makes proving malice significantly more difficult for a plaintiff.

5. Timing and context: The court will examine the entire context, including what precipitated the publications and their timing relative to other events or disputes.

Conclusion

The role of malice in defamation law represents a careful balance between protecting reputation and preserving freedom of communication on matters of legitimate interest. Harvey v Henderson [2025] NSWSC 601 demonstrates that while qualified privilege provides important protection for necessary communications, it cannot be used as a shield for publications motivated by improper purposes.

Understanding when malice will be found requires careful analysis of the publisher's dominant motive, the relationship between the parties, and the connection between what was published and any legitimate interest or duty. For those operating in positions of responsibility - whether as company directors, committee members, or in other fiduciary roles - the case underscores both the protection available for proper governance communications and the limits of that protection when improper purposes intrude.

The Sufficient Connection Test in Qualified Privilege: When Defamatory Statements Are Germane to the Protected Occasion

Introduction: The Slater v Ecosol Case

The decision in Slater v Ecosol Pty Ltd [2025] SASCA 78 provides guidance on when defamatory statements are sufficiently connected to an occasion of qualified privilege.

The case involved a dispute over the proposed sale of a stormwater treatment manufacturing business. Mr Slater, a shareholder, opposed the sale to management (through Urban Asset Solutions Pty Ltd) and communicated his concerns to fellow shareholders. In response, the company's chairman, Mr Smith, sent letters to shareholders that included statements Mr Slater claimed were defamatory – including imputations that he had lied to shareholders and was improperly motivated. While the trial judge found the statements were defamatory, the defence of qualified privilege succeeded because the statements were sufficiently connected to the privileged occasion of communicating with shareholders about the proposed transaction.

The Broad Approach to Connection

The law takes a deliberately broad view of what constitutes a sufficient connection to a privileged occasion. As the Court in Slater v Ecosol emphasised, statements need not be central to the topic or contribute positively to the discussion to attract protection. Drawing on the High Court's guidance in Cush v Dillon (2011) 243 CLR 298, the Court confirmed that "no narrow view should be taken of the pursuit of a duty or interest in what was said."

This broad approach reflects the underlying rationale of qualified privilege – that in certain circumstances, a plaintiff's right to protect their reputation must yield to the public interest in free communication on matters of legitimate concern (Roberts v Bass (2002) 212 CLR 1; Stone v Moore (2016) 125 SASR 81).

Key Principles from the Authorities

Relevance and Germaneness

The fundamental test is whether the defamatory matter is "relevant" or "germane" to the privileged occasion. In Adam v Ward [1917] AC 309, various formulations were used:

• Matter that is "not relevant and pertinent" to the occasion

• Something "beyond what was germane and reasonably appropriate to the occasion"

• Matter "quite unconnected with and irrelevant to the main statement"

• Matter "not in any reasonable sense germane" to what was being conveyed

As Cush v Dillon clarified, these different formulations should not be read as imposing varying levels of stringency – the key point is that the law does not require a narrow view of relevance.

Errors and Inaccuracies Don't Break the Connection

Importantly, the fact that a statement is wrong, defamatory, or even excessive does not automatically mean it lacks sufficient connection. In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366, an error in identifying the party subject to court findings did not sever the connection to the privileged occasion. Similarly, in Cush v Dillon, referring to a rumour as fact (when discussing governance concerns) maintained the requisite connection.

The Distinction Between Excessive and Extraneous

There is a crucial distinction between statements that are excessive yet within the privileged occasion, and statements that exceed the occasion by being irrelevant (Marshall v Megna [2013] NSWCA 30). As Stone v Moore explained, the focus is on the topic in respect of which the relevant duty or interest exists, not the precise words spoken. Even strident, incorrect or extravagant language can be protected if it relates to the privileged topic.

Self-Defence and Rebuttal

The authorities recognise that "great latitude" must be allowed to persons defending themselves against attacks (Penton v Calwell (1945) 70 CLR 219; Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251). This principle was relevant in Slater v Ecosol, where the company's responses to Mr Slater's criticisms were held to be sufficiently connected to the privileged occasion.

Practical Examples: When Connection May Be Lost

Example 1: The Board Meeting Discussion

At a company board meeting convened to discuss the annual budget, a director raises concerns about proposed cost-cutting measures. During the discussion, she states: "The CFO's budget projections are as reliable as his taste in music – I saw him at that terrible boy band concert last week with someone who definitely wasn't his wife."

While criticising the CFO's budget projections would be germane to the occasion, the gratuitous comments about his musical preferences and personal life would likely not be sufficiently connected. These statements are "quite unconnected with and irrelevant" (Adam v Ward) to the budgetary discussion that creates the privileged occasion.

Example 2: The Workplace Safety Report

A workplace safety officer sends a report to management about safety breaches in the warehouse. The report includes: "John Smith has repeatedly operated the forklift at dangerous speeds in the loading bay. This doesn't surprise me given that he was convicted of drink driving last year and his ex-wife told me he's a compulsive gambler who owes money all over town. Someone with such poor judgment in their personal life obviously can't be trusted with workplace safety."

While the observations about John Smith's forklift operation would be germane to the privileged occasion, the gratuitous references to his criminal history and alleged gambling problems bear no reasonable connection to workplace safety concerns. Following Guise v Kouvelis (1947) 74 CLR 102, such comments would be "so foreign to the occasion that they must be held to be extraneous or irrelevant."

The Position of Directors and Fiduciaries

The Slater v Ecosol decision also clarifies that a person's position or duties (such as being a director or fiduciary) does not narrow the scope of privileged occasion or impose additional constraints on what can be said. The Court rejected arguments that directors must confine themselves to statements that "contribute to" or "assist" debate. As long as the statements relate to the privileged topic in the broad sense recognised by the authorities, they remain protected even if they are attacks on character or motivation.

Practical Checklist: Assessing Whether Statements Are Germane

When advising on whether defamatory statements are sufficiently connected to a privileged occasion, practitioners should work through the following comprehensive checklist:

1. Identify the Privileged Occasion

• What is the precise nature of the duty or interest that creates the privilege?

  • Is it a legal duty, moral duty, or social duty?

  • Is it a public interest or private interest?

  • Who are the relevant parties to the privileged communication?

• What is the scope of the subject matter covered by the privilege?

  • Define the topic broadly rather than narrowly

  • Consider all aspects reasonably connected to the main subject

  • Remember that tangential matters may still be included

2. Analyse the Context of the Communication

• What prompted the communication?

  • Was it in response to an attack or criticism? (Remember the "great latitude" principle)

  • Was it initiated by the publisher or reactive?

  • What was the timeline of communications?

• What was the publisher's role or position?

  • While position doesn't narrow the privilege, it provides context

  • Consider whether the publisher had authority to speak on the matter

  • Note any special knowledge or expertise relevant to the topic

3. Examine the Defamatory Statements

• How do the statements relate to the privileged topic?

  • Do they directly address the subject matter?

  • Are they examples or illustrations of points about the topic?

  • Do they provide context or background to the main issue?

• If the statements attack character or motivation:

  • Is the person's character relevant to their role in the privileged matter?

  • Do the attacks relate to their conduct concerning the privileged topic?

  • Are they responding to attacks made by that person?

4. Apply the Legal Tests

• The "Adam v Ward" formulations - are the statements:

  • "Relevant and pertinent" to the discharge of duty or protection of interest?

  • Within what is "germane and reasonably appropriate to the occasion"?

  • Not "quite unconnected with and irrelevant to the main statement"?

  • Not matter that is "not in any reasonable sense germane"?

• The "Guise v Kouvelis" test:

  • Are the words "so foreign to the occasion that they must be held to be extraneous or irrelevant"?

5. Consider Common Scenarios

• If the statements contain errors or are false:

  • Remember this doesn't automatically break the connection (Bashford)

  • Focus on subject matter, not accuracy

• If the statements are excessive or extravagant:

  • Distinguish between excessive language about the relevant topic (likely protected)

  • Versus statements about extraneous matters (not protected)

• If the statements seem unhelpful or unconstructive:

  • The law doesn't require statements to advance debate positively

  • Even counterproductive statements can be germane

6. Red Flags - Factors Suggesting Lack of Connection

• Purely personal attacks unrelated to the privileged matter

  • References to unrelated personal relationships

  • Attacks on characteristics irrelevant to the topic

  • Historical grievances with no bearing on current matter

• Subject matter from entirely different spheres

  • Professional criticism veering into unrelated personal life

  • Business discussions including irrelevant social commentary

  • Official communications containing private vendettas

• Timing disconnects

  • References to events far removed in time with no logical connection

  • Dragging in historical matters not relevant to current issue

7. Special Considerations

• For company/shareholder communications:

  • Broad scope for discussing company affairs, transactions, and governance

  • Criticism of directors/management conduct generally germane

  • Shareholder activism and opposition typically within scope

• For employment references:

  • Focus on work performance and conduct

  • Personal life only relevant if impacts work capacity

• For public interest communications:

  • Wider scope for discussion of public figures

  • Context of public debate allows broader range of comment

8. Document Your Analysis

• Create a clear record showing:

  • The identified privileged occasion and its scope

  • How each defamatory statement relates to that occasion

  • Any statements that may fall outside protection

  • The authorities supporting your conclusions

9. Borderline Cases

• When connection is arguable:

  • Remember the broad approach mandated by Cush v Dillon

  • Consider whether a reasonable person would see some relationship to the topic

  • If genuinely borderline, the broad approach suggests inclusion

• Mixed communications:

  • Separate germane from non-germane portions

  • Privilege protects the connected statements even if others are not protected

10. Final Review Questions

• Have I taken too narrow a view of the privileged occasion?

• Have I focused on the topic rather than the specific words used?

• Would excluding these statements unduly restrict free communication on the privileged matter?

• Is there any reasonable argument connecting the statements to the privileged topic?

This checklist should be applied flexibly, remembering that the law favours protection of free communication on matters of legitimate interest. When in doubt, the authorities suggest taking a broad rather than narrow approach to connection.

Conclusion

The sufficient connection test in qualified privilege requires courts to take a broad, practical approach. Defamatory statements will be protected if they are relevant and germane to the privileged occasion, even if they are wrong, excessive, or unhelpful to constructive debate. Only statements that are truly extraneous or irrelevant to the privileged topic will fall outside protection. For practitioners, this means carefully identifying the scope of the privileged occasion and assessing whether impugned statements relate to that topic, however tangentially. The law's broad approach reflects the importance placed on protecting free communication on matters of legitimate interest, even when that communication is robust, mistaken, or defamatory.

Suppression Orders in Defamation Cases: Balancing Open Justice with the Protection of Minor Witnesses

Introduction: The Kerry Case

A decision of the NSW Supreme Court in Kerry v The New South Wales Ice Skating Association Inc [2025] NSWSC 833 provides important guidance on when courts will grant suppression orders to protect the identities of minors and alleged victims of sexual misconduct in defamation proceedings. The case involved an Australian Olympian and coach who sued for defamation after the defendant published a note to its members about sanctions imposed by the US Centre for SafeSport. The sanctions related to findings of sexual misconduct involving two individuals: a 17-year-old in California (where the age of consent is 18) and a 14-year-old in Queensland. The Court granted suppression orders protecting both individuals' identities, despite the plaintiff's opposition.

The Principle of Open Justice

The starting point for any discussion of suppression orders is the fundamental principle of open justice. As Rothman J noted in Kerry, the primary objective of the administration of justice is to safeguard the public interest in open justice, which is "generally, fundamental to the proper administration of justice and to the democratic nature of society."

However, this principle is not absolute. The Court of Criminal Appeal in R v Kwok & Ors [2005] NSWCCA 245 recognised two distinct classes of exception:

1. Exceptions based on general considerations relating to the administration of justice

2. Exceptions where specific considerations concerning a specific witness or person affect the administration of justice

Special Considerations for Sexual Offence Victims

Courts have long recognised that victims of sexual offences, particularly minors, warrant special protection. In Kwok, the Court of Criminal Appeal explained that there are "recognised categories in which the publication of names may, as a matter of necessity, be prohibited," including victims of sexual offences alongside informers and victims of blackmail.

The rationale is compelling. As the Court observed in Kwok:

• Publication of victims' identities can further the criminal activity of perpetrators[^1]

• It inhibits victims from giving evidence and reporting crimes

• Child victims particularly face difficulties reporting abuse when publicity becomes a detriment to their mental health

[^1]: This principle recognises that perpetrators may use the threat of public exposure as a tool of control over their victims. In cases involving blackmail or sexual offences, the fear of public identification can prevent victims from reporting crimes or cooperating with authorities, thereby allowing perpetrators to continue their criminal conduct. As noted in Kwok, this creates a parallel with blackmail cases where "the publication of their identity will further the criminal activity of the perpetrators and inhibit further victims from giving evidence and reporting crime."

Legislative Protections for Child Victims

The Kerry case highlighted how each Australian state and territory has enacted specific protections for child victims of sexual offences. In Queensland, the Child Protection Act 1999 makes it a criminal offence to publish identifying information about a "relevant person" - defined as a child in relation to whom an offence was committed or alleged to have been committed. Section 194 provides for significant penalties: up to 100 penalty units or 2 years imprisonment for individuals.

This legislative framework reflects society's recognition that child victims of abuse are often traumatised by the conduct itself, and that public identification represents "an aggravating feature of the trauma and damage that occurs as a consequence of that abuse."

The Test for Suppression Orders

When determining whether to grant suppression orders, courts apply the test of "necessity" - but this doesn't mean "essential." As the High Court clarified in Pelechowski v The Registrar, Court of Appeal (1998) 198 CLR 435, necessary in this context means orders that are "reasonably required" or "legally ancillary" to the accomplishment of justice. The term is "subjected to the touchstone of reasonableness."

In the defamation context, courts will consider whether suppression orders are necessary to:

• Prevent prejudice to the proper administration of justice[1]

• Protect the safety of persons

• Serve the public interest

Practical Implications for Defamation Proceedings

The Kerry decision demonstrates that suppression orders in defamation cases:

• Do not prevent the examination of the court's jurisdiction or inhibit public scrutiny of judgments

• Can be limited to protecting specific identities while maintaining transparency of proceedings

• Create confidence in victims to give evidence openly without fear of exposure

• Encourage other victims to come forward

Importantly, mere embarrassment is insufficient to warrant suppression. As Rothman J noted, "Each criminal charge creates embarrassment." The court requires evidence of genuine harm or impediment to justice.

Balancing Competing Interests

Courts must carefully balance the public interest in open justice against other compelling interests. In Kerry, the Court found that protecting the identities of alleged sexual misconduct victims - particularly the 14-year-old - significantly outweighed the public interest in full disclosure of names.

This balancing exercise recognises that suppression orders can actually serve the administration of justice by:

• Ensuring witnesses feel safe to give evidence

• Maintaining public confidence in the justice system's ability to protect vulnerable witnesses

• Preventing further trauma to victims who have already suffered harm

Conclusion

The Kerry decision reinforces that while open justice remains the cornerstone of our legal system, courts retain discretion to make limited suppression orders where necessary to protect vulnerable witnesses and ensure the proper administration of justice. For practitioners in defamation matters involving allegations of sexual misconduct or minor witnesses, early consideration should be given to whether suppression orders may be appropriate. The key is demonstrating not just potential embarrassment or discomfort, but genuine necessity based on harm prevention and the broader interests of justice.

When seeking such orders, practitioners should be prepared to provide concrete evidence of potential harm and frame their applications within the established categories recognised by the courts. The burden remains on the applicant to satisfy the court of necessity, but where minor victims of alleged sexual offences are involved, courts will give serious consideration to protective orders that maintain the substance of open justice while shielding vulnerable individuals from unnecessary harm.

Footnote:

1. This principle recognises that perpetrators may use the threat of public exposure as a tool of control over their victims. In cases involving blackmail or sexual offences, the fear of public identification can prevent victims from reporting crimes or cooperating with authorities, thereby allowing perpetrators to continue their criminal conduct. As noted in Kwok, this creates a parallel with blackmail cases where "the publication of their identity will further the criminal activity of the perpetrators and inhibit further victims from giving evidence and reporting crime."

Costs Payable "In Any Event" in Interlocutory Proceedings

Introduction

The District Court of Western Australia has developed a distinct practice regarding the timing of costs orders in interlocutory proceedings. Unlike the Supreme Court, which generally orders costs to be paid forthwith pursuant to Consolidated Practice Direction 4.7.1, the District Court maintains a "usual practice of ordering the payment of costs from interlocutory hearings to be payable 'in any event'": QBE Insurance (Australia) Ltd v Coffey [2015] WADC 110 (S) at [61]. This practice reflects important policy considerations regarding the efficient administration of justice and the fair allocation of litigation risks between parties.

The General Rule

As articulated by Davis DCJ in QBE Insurance v Coffey, the phrase "in any event" means that costs are to be paid at the conclusion of the proceedings, regardless of the ultimate outcome of the substantive matter. His Honour observed at [61] that "the practice in this court is not to make an order for payment of costs forthwith unless there is something out of the ordinary so as to warrant the making of such an order." This principle has been consistently applied in District Court decisions: see Dakin Farms Pty Ltd v Elite Grains Pty Ltd [2012] WADC 43 at [52] (Commissioner Gething); Herbertson v Morton [2013] WADC 7 (S) at [7] (Eaton DCJ).

Rationale for the "In Any Event" Rule

The policy justifications for ordering costs "in any event" rather than forthwith were comprehensively explained in QBE Insurance v Coffey at [62], drawing upon the Federal Court's analysis in Mango Boulevard Pty Ltd v Whitton; in the matter of Spencer (Bankrupt) (No 2) [2011] FCA 845 at [23]. Davis DCJ identified three primary purposes:

1. Avoiding Multiple Taxations

The rule promotes judicial economy by consolidating all costs issues to be dealt with at the conclusion of the proceedings. This prevents the inefficiency of multiple taxation proceedings throughout the life of the litigation.

2. Preventing Apparent Unfairness

As noted at [62], the rule "avoids the apparent unfairness which may arise if, at an early stage in the proceedings, the party who is ultimately successful is required to pay costs to a party who is ultimately unsuccessful." This recognizes that interlocutory success may not translate to ultimate success in the substantive proceedings.

3. Preventing Tactical Exploitation

The rule "prevents interlocutory proceedings being used as a weapon to exhaust the financial resources of one of the parties": QBE Insurance v Coffey at [62], citing Rafferty v Time 2000 West Pty Ltd (No 3) [2009] FCA 727; (2009) 257 ALR 503 at [20] (Besanko J). This is particularly important where there is a significant disparity in the financial resources of the parties.

When Costs May Be Ordered Forthwith

While the general rule favors costs being payable "in any event," the District Court retains discretion to order costs payable forthwith in exceptional circumstances. As stated in QBE Insurance v Coffey at [61], such an order will only be made where "there is something out of the ordinary so as to warrant the making of such an order."

The mere fact that interlocutory proceedings are "difficult, complex and important" or involve "substantial" quantum of costs does not, without more, justify departure from the usual practice: QBE Insurance v Coffey at [64]-[65]. In that case, Davis DCJ rejected arguments that costs should be paid forthwith despite the defendants' success in discharging a freezing order, finding at [70] that the plaintiff's application "was [not] ill-considered, or needless, or in the category of applications that ought to be discouraged."

Examples of circumstances that may warrant costs being paid forthwith include:

• Ill-considered or defective applications that fall within the category of proceedings that ought to be discouraged: Cristovao v Butcher Paull & Calder [2008] WADC 49 at [56]

• Needless applications that represent an abuse of process: Cristovao v Butcher Paull & Calder at [58]

• Unreasonable or reprehensible conduct by a party, coupled with long delays before final determination: Mango Boulevard Pty Ltd v Whitton at [24]

Relationship with Supreme Court Practice

It is important to note that the District Court's approach differs from the Supreme Court's practice under Consolidated Practice Direction 4.7.1, which provides that "as a general rule, when an order for costs is to be made against a party in interlocutory proceedings, the costs will be ordered to be paid forthwith or by a particular date": QBE Insurance v Coffey at [63].

However, as Davis DCJ acknowledged at [69], the Supreme Court's practice direction "may be a guide to the exercise of my discretion in an appropriate case in this court." The key consideration is whether the policy objectives underlying the Supreme Court's approach—particularly discouraging ill-considered or needless interlocutory applications—are engaged in the particular circumstances.

Practical Considerations

When considering whether to depart from the usual practice, the court should have regard to:

• The nature and merits of the interlocutory application

• The conduct of the parties

• Any disparity in financial resources between the parties

• The likely delay until final determination

• Whether the proceedings are likely to remain in the District Court or be transferred

As noted in QBE Insurance v Coffey at [74], where proceedings may be transferred to the Supreme Court, "there is no reason why taxation of the costs of these interlocutory proceedings could not take place in the Supreme Court, if this matter is transferred there, as the Determination also applies to the taxation of costs in the Supreme Court."

Conclusion

The District Court's practice of ordering costs "in any event" reflects a balanced approach to interlocutory costs orders that promotes efficiency, fairness, and access to justice. While the court retains discretion to order costs payable forthwith in appropriate cases, the general rule serves important policy objectives that should not be lightly displaced.

Sale of Land in Lieu of Partition: Conduct and Terms Under Section 126 of the Property Law Act 1969 (WA)

Introduction

The recent decision in Genders v Synergia Health Pty Ltd [2024] WASC 223 provides valuable guidance on the application of section 126(1) of the Property Law Act 1969 (WA), particularly regarding which party should have conduct of sale and the appropriate terms for such sales. In this case, Master Russell considered an application by Warren Gilbert Genders for summary judgment seeking the sale of two strata units in Beldon, Western Australia, which he owned as tenant in common with Synergia Health Pty Ltd in equal shares (paragraph 1). While the parties agreed the properties should be sold, they disputed who should conduct the sale and on what terms (paragraph 7).

The Statutory Framework

Section 126(1) of the Property Law Act 1969 (WA) provides that where parties holding at least a half share in land request the court to direct a sale and distribution of proceeds instead of partition, "the Court shall, unless it sees good reason to the contrary, direct a sale accordingly" (paragraph 33). The purpose of this provision is to provide a remedy for joint tenants or tenants in common who may otherwise lack adequate remedies to protect their interests in the event of disputes with co-tenants (Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 650, 656-657, cited at paragraph 34).

Importantly, as Master Sanderson observed in Trainor v Trainor [2021] WASC 40 at paragraphs 4-6, section 126(1) "does not embody a broad discretion in the court to grant or refuse an order for sale" (paragraph 35). The court's choice is limited to ordering either sale or partition, with no other alternatives available.

Determining Who Should Have Conduct of Sale

The Court's Discretion

The court possesses "a complete discretion as to who it will appoint to conduct a sale ordered under s 126(1) of the Act" (Bombara v Bombara [2010] WASC 314 at paragraph 80, cited at paragraph 38). While ordinarily the conduct of sale is given to the plaintiff as a matter of practice (Bombara v Bombara at paragraph 80, citing Dixon v Pyner (1850) 68 ER 135; Dale v Hamilton (1853) 68 ER 1116; and Murray v Geoffroy (1918) 18 SR (NSW) 259), this is not an inflexible rule (paragraph 39).

In exercising this discretion, the court must consider a broad range of factors, and good reasons might displace the ordinary course (Gray v Gray [2023] WASC 70 at paragraph 37, cited at paragraph 39). The overriding consideration is that any party having conduct must "act in good faith and in the interests of both parties in the conduct of the sale" (paragraph 64).

When Joint Conduct Is Inappropriate

The Genders decision provides clear guidance on when joint conduct of sale is unsuitable. Master Russell noted that where court determination of sale terms is necessary, "it is clear the parties are in dispute and there will likely be lack of cooperation, disagreement, and further dispute between the parties after the sale order is made" (paragraph 51, citing Manifis v Mouzalidis [2021] WASC 454 at paragraph 3).

Critical factors suggesting joint conduct is inappropriate include:

• Absence of positive evidence that parties can work together (paragraph 54)

• A broken-down relationship between the parties (paragraph 55)

• Risk that joint decision-making requirements will cause further disputes and delays (paragraph 57)

In Genders, Master Russell concluded that orders requiring both parties to agree on critical matters "would likely result in further dispute between them" with inevitable delays and increased costs (paragraph 57).

Factors Affecting Sole Conduct

When determining whether the plaintiff should have sole conduct, the court will consider any conduct that might disqualify them. In Genders, Synergia raised two objections: first, that Mr Genders might seek to acquire the property at undervalue (based on a three-year-old offer), and second, that he had withheld rent payments (paragraphs 45-46). Master Russell found neither reason sufficient to disqualify the plaintiff, noting his clear statement that he had no intention to purchase the properties and finding he was not responsible for loan defaults (paragraphs 61-62).

Terms of Sale

Method of Sale

The court has broad discretion in determining sale methods. Master Russell emphasized that orders under section 126 "are for the sale of property. They are not orders for sale at the best possible price" (Manifis v Mouzalidis [2021] WASC 454 at paragraph 8, cited at paragraph 74). While price is relevant and must be reasonable, it is not the sole consideration.

The appropriate approach is for the party with conduct to "tak[e] into account the agent's advice and recommendations, acting reasonably, as to which method or methods of sale are likely to result in the best outcome in terms of price, and achieving a completed sale as expeditiously as possible" (paragraph 75).

Protective Mechanisms

To protect the interests of the party not having conduct, courts typically include several safeguards:

1. Notice requirements: The conducting party must notify the other of key decisions, including chosen sale method and reasons for any changes (paragraph 65)

2. Information sharing: Real estate agents must provide copies of engagement agreements, offers received, signed contracts, and cost summaries to both parties simultaneously (proposed order 4(f), discussed at paragraph 66)

3. Acceptance restrictions: For sales other than by auction, the non-conducting party typically receives three days' notice before any offer is accepted (paragraph 67)

4. Reserve price protection: Sales below an agreed reserve may require consent or agent recommendation depending on timing (paragraphs 67-68)

5. Restrictions on self-dealing: To address concerns about conflicts of interest, courts may prohibit the conducting party from bidding during an initial period (paragraph 80)

Distribution of Proceeds

The net proceeds after deduction of sale costs are typically distributed according to the parties' ownership shares. Where secured debts exist, as with the Bank of Queensland loan in Genders, amounts owing are deducted from the responsible party's share to discharge registered mortgages (paragraph 76).

Conclusion

The Genders decision reinforces that while courts have broad discretion in appointing who conducts sales under section 126(1), this discretion must be exercised with regard to practical realities. Where relationships have broken down and cooperation is unlikely, joint conduct is inappropriate. The primary consideration remains achieving an effective sale that protects both parties' interests through appropriate safeguards and oversight mechanisms, rather than pursuing the theoretical best price at the cost of prolonged disputes and delays.